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1 R. Rex Parris (SBN 96567)
Kitty K. Szeto (SBN 258136) 12/20/2017
2 John M. Bickford (SBN 280929)
PARRIS LAW FIRM
3 43364 10th Street West
Lancaster, California 93534
4 Telephone (661) 949-2595
Facsimile (661) 949-7524
5
Attorneys for Plaintiff and the Settlement Class
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF BUTTE
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11 MELISSA GUPTON; an individual, for ) Case No. 162972
herself and all members of the putative class, )
12 ) CLASS ACTION
Plaintiff, )
13 ) PLAINTIFF’S NOTICE OF UNOPPOSED
v. ) MOTION AND UNOPPOSED MOTION FOR
14 ) FINAL APPROVAL OF CLASS ACTION
TRI COUNTIES BANK, a California ) SETTLEMENT; MEMORANDUM OF POINTS
15 Corporation, and DOES 1 through 100, ) AND AUTHORITIES
inclusive, )
16 ) [Filed Together with Declarations of Kitty K.
Defendants. ) Szeto, Isaac S. Stevens, Ace T. Tate, Kelly
17 ) Kratz, Melissa Gupton, and Angela Potter;
) [Proposed] Order]
18 )
) Date: January 12, 2018
19 ) Time: 9:00 a.m.
) Dept.: NC-3
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PLAINTIFF’S UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1 PLEASE TAKE NOTICE that on January 12, 2018 at 9:00 a.m., or as soon as this
2 matter may be heard before the Honorable Stephen E. Benson in Department NC-3 of the
3 above-entitled court located at 1775 Concord Avenue, Chico, California 95928, Plaintiff
4 Melissa Gupton (“Plaintiff”) will and hereby move the Court for an order granting final approval
5 of:
6 1. The $1,900,000.00 class action settlement as described herein and as set forth in
7 the parties’ fully executed Class Action Settlement and Release (“Settlement”) attached as
8 Exhibit “A” to the Declaration of Kitty K. Szeto filed concurrently herewith on the grounds that
9 the Settlement is fair, reasonable, and adequate because:
10 789 Class Members who submitted a timely, complete, and valid Claim Form will
11 be receiving money from the Settlement;
12 The average pre-tax settlement award per Class Member is approximately
13 $790.03, with the highest award estimated at approximately $2,917.30; and
14 No objections were submitted to the Settlement.
15 2. Class Counsel’s request for attorneys’ fees in the amount of $665,000 for
16 1,533.62 hours of work on the case;
17 3. Class Counsel’s request for reimbursement of out-of-pocket litigation costs in the
18 amount of $22,302.54, which is just slightly above the initial estimate of $20,000;
19 4. $10,000 as a Class Representative Payment to Melissa Gupton;
20 5. $10,000 as a Class Representative Payment Angela Potter;
21 6. $13,295 to Dahl Administration, LLC, Inc. for settlement administration costs,
22 which is just slightly above the initial estimate of $12,544; and
23 7. $20,000 to the California Labor and Workforce Development Agency (“LWDA”)
24 for the LWDA’s portion of PAGA penalties.
25 This motion is based on the following memorandum of points and authorities; the
26 Declarations of Kitty K. Szeto, Isaac S. Stevens, Ace T. Tate, Kelly Kratz, Melissa Gupton, and
27 Angela Potter and all exhibits attached thereto filed concurrently herewith; the [Proposed] Order
28 lodged together with this motion, as well as upon the pleadings and other records on file with the
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PLAINTIFF’S UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1 Court in this matter, and upon such documentary evidence and oral argument as may be
2 presented at or before the hearing on this motion.
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4 DATED: December 19, 2017 PARRIS LAW FIRM
5
By:____________________________
6 Kitty K. Szeto
7 Attorneys for Plaintiff and the
Settlement Class
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PLAINTIFF’S UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1 TABLE OF CONTENTS
PAGE
2
3 1. SUMMARY OF MOTION ......................................................................................................... 1
4 2. PROCEDURAL HISTORY AND FACTUAL BACKGROUND ......................................................... 1
5 3. SUMMARY OF THE SETTLEMENT TERMS .............................................................................. 3
6 4. NOTICE OF THE SETTLEMENT TO THE CLASS ........................................................................ 3
7 5. THE COURT SHOULD GRANT FINAL APPROVAL OF THE
8 CLASS ACTION SETTLEMENT. .............................................................................................. 3
9 A. The Settlement Was Reached Through Arms’ Length Bargaining After
10 Sufficient Investigation and Discovery by Experienced Class Counsel. ................ 5
11 B. The Settlement is Fair, Adequate, and Reasonable................................................. 6
12 C. There Are No Objectors to the Settlement. ............................................................. 7
13 6. LEGAL STANDARD ON ATTORNEYS’ FEES IN CLASS ACTION SETTLEMENTS. ...................... 8
14 7. ATTORNEYS’ FEES IS JUSTIFIED AS A PERCENTAGE OF THE ENTIRE FUND. ....................... 12
15 A. The Time and Labor Required. ............................................................................. 12
16 B. The Skill Required To Perform Legal Services Properly. .................................... 13
17 C. Whether the Fee is Fixed or Contingent. .............................................................. 13
18 D. The Time, Effort, and Expense Class Counsel Dedicated to the Case. ................ 14
19 E. The Value of the Settlement for the Class Members. ........................................... 14
20 8. THE LODESTAR METHODOLOGY ALSO MANDATES APPROVAL
21 OF THE REQUESTED FEE. .................................................................................................... 16
22 9. THE REACTION OF THE CLASS MEMBERS STRONGLY SUPPORTS
23 THE REQUESTED FEE. ......................................................................................................... 17
24 10. COSTS TO BE REIMBURSED. ............................................................................................... 18
25 11. PLAINTIFF’S CLASS REPRESENTATIVE PAYMENT IS FAIR AND REASONABLE. .................... 18
26 12. CONCLUSION...................................................................................................................... 20
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PLAINTIFF’S UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1 TABLE OF AUTHORITIES
PAGE(S)
2
3 Cases
4 7-Eleven Owners for Fair Franchising v. Southland Corp.
5 (2000) 85 Cal.App.4th 1135 .................................................................................................... 5, 8
6 Allapattah Services, Inc. v. Exxon Corp.,
7 454 F.Supp. 2d 1185 (S.D.Fla. 2006) ........................................................................................ 12
8 Beech Cinema, Inc. v. Twentieth-Century Fox Film Corp.,
9 480 F.Supp. 1195 (S.D.N.Y. 1979), aff’d 622 F.2d 1106 (2nd Cir. 1980) ................................ 15
10 Blum v. Stenson,
11 465 U.S. 886 (1984) ................................................................................................................... 11
12 Boeing Co. v. Van Gemert
13 (1980) 444 U.S. 472 ............................................................................................................ passim
14 Boring v. Bed Bath & Beyond of California Ltd. Liab. Co.,
15 No. 12-CV-05259-JST, 2014 WL 2967474 (N.D. Cal. June 30, 2014) .................................... 22
16 Chavez v. Netflix, Inc.
17 (2008) 162 Cal.App.4th 43 ...................................................................................................... 4, 5
18 Crampton v. Takegoshi
19 (1993) 17 Cal.App.4th 308 ........................................................................................................ 10
20 Dolgow v. Anderson,
21 43 F.R.D. 472 (E.D.N.Y. 1968) ................................................................................................. 11
22 Dunk v. Ford Motor Co.
23 (1996) 48 Cal.App.4th 1794 .................................................................................................... 5, 9
24 Eddings v. Health Net, Inc.,
25 No. CV 10-1744-JST RZX, 2013 WL 3013867 (C.D. Cal. June 13, 2013) .............................. 22
26 Glass v. UBS Financial Services, Inc.,
27 2007 WL 221862 (N.D. Cal. Jan. 26, 2007) .............................................................................. 12
28
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PLAINTIFF’S UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1 TABLE OF AUTHORITIES
PAGE(S)
2 Cases
3
Holman v. Experian Info. Solutions, Inc.,
4
No. 11-CV-0180 CW (DMR), 2014 WL 7186207 (N.D. Cal. Dec. 12, 2014).......................... 22
5
In Cambden I Condominium Association, Inc., v. Dunkel
6
(11th Cir. 1991) 946 F. 2d 768 .................................................................................................. 13
7
In re Activision Securities Litigation,
8
723 F. Supp. 1373 (N.D. Cal. 1989) .......................................................................................... 15
9
In re Ampicillin Antitrust Litigation, 526 F. Supp. 494 (D.D.C. 1981) ........................................ 15
10
In re Buspirone Patent & Antitrust Litig.,
11
MDL No. 1413, 2003 U.S. Dist. LEXIS 26538 (S.D.N.Y. Apr. 11, 2003) ............................... 15
12
In re Cardizem CD Antitrust Litig.,
13
No. 99-73259 (E.D. Mich. Nov. 25, 2002) ................................................................................ 15
14
In re Crazy Eddie Sec. Litig,
15
824 F. Supp. 320, 327 (E.D.N.Y. 1993) .................................................................................... 19
16
In re Gen. Pub. Utils. Sec. Litig.,
17
No. 79-1420, 1983 U.S. Dist. LEXIS 11641 (D.N.J. Nov. 16, 1983) ....................................... 19
18
In re Imperial Corp. of Am.
19
(9th Cir. 1996) 92 F.3d 1502 ....................................................................................................... 5
20
In re Interpublic Sec. Litig.,
21
No. Civ. 6527 (DLC), 2004 U.S. Dist. LEXIS 21429 (S.D.N.Y. Oct. 27, 2004) ...................... 11
22
In re Linerboard Antitrust Litigation,
23
MDL No. 1261, 2004 U.S. Dist. LEXIS 10532 (E.D. Pa. June 2, 2004) .................................. 16
24
In re Lloyd’s Am. Trust Fund Litig.,
25
No. 96 Civ. 1262, 2002 U.S. Dist. LEXIS 22663 (S.D.N.Y. Nov. 26, 2002) ........................... 20
26
In re Pacific Enterprises Securities Litigation,
27
(9th Cir. 1995) 47 F. 3d 373 ..................................................................................................... 15
28
TABLE OF AUTHORITIES
iii
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PLAINTIFF’S UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1 PAGE(S)
Cases
2
3 In re Prudential Sec. Ltd. P’ships. Litig.,
4 985 F. Supp. 410, 416 (S.D.N.Y. 1997)..................................................................................... 19
5 In re Relafen Antitrust Litig.,
6 1:01cv12239-WGY, (Order and Final Judgment dated Apr 9, 2004, D. Mass.) ....................... 15
7 Ketchum v. Moses
8 (2001) 24 Cal.4th 1122 .............................................................................................................. 18
9 Lealao v. Beneficial Cal., Inc.
10 (2000) 82 Cal.App.4th 19 ................................................................................................ 9, 12, 13
11 Maley v. Del Global Technologies Corp.,
12 186 F. Supp. 2d 358 (S.D.N.Y. 2002)........................................................................................ 19
13 Masters v. Wilhelmina Model Agency, Inc.,
14 473 F.3d 423 (2d Cir. 2006)....................................................................................................... 12
15 Mills v. Electric Auto-Lite Co.,
16 396 U.S. 375 (1970) ................................................................................................................... 11
17 Nichols v. Smithkline Beecham Corp.,
18 No. Civ. A. 00-6222, 2005 WL 950616 (E.D. Pa. Apr. 22, 2005) ............................................ 15
19 North Shore Hematology-Oncology Assoc., P.C. v. Bristol-Myers Squibb Co.,
20 No. 04 Civ. 248 (D.D.C. Nov. 30, 2004) ................................................................................... 15
21 Paul, Johnson, Alston & Hunt v. Graulty
22 (9th Cir. 1989) 886 F.2d 268 ..................................................................................................... 11
23 Roos v. Honeywell International, Inc.
24 (2015) 241 Cal.App.4th 1472 ...................................................................................................... 9
25 Schiller v. David’s Bridal, Inc.
26 (E.D.Cal. June 11, 2012) No. 1:10-cv-00616-AWI-SKO, 2012 WL 2117001 ........................... 5
27
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PLAINTIFF’S UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1 TABLE OF AUTHORITIES
PAGE(S)
2 Cases
3
Serrano v. Priest
4
(1977) 20 Cal.3d 25 ............................................................................................................... 9, 10
5
Six Mexican Workers v. Arizona Citrus Growers
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(9th Cir. 1990) 904 F.2d 1301 ............................................................................................. 11, 12
7
Staton v. Boeing Co.,
8
327 F.3d 938, 972 (9th Cir.2003) .............................................................................................. 10
9
Stoetzner v. U.S. Steel Corp.
10
(3d Cir. 1990) 897 F.2d 115................................................................................................... 8, 20
11
Van Gemert v. Boeing Co.,
12
516 F. Supp. 412, 420 (S.D.N.Y. 1981)........................................................................... 9, 10, 15
13
Vincent v. Hughes Air West, Inc.
14
(9th Cir. 1977) 557 F.2d 759 ................................................................................................. 9, 10
15
Vo v. Las Virgenes Municipal Water Dist.
16
(2000) 79 Cal.App4th 440 ......................................................................................................... 18
17
Vranken v. Atlantic Richfield Co.
18
(N.D. Cal. 1995) 901 F.Supp. 294 ............................................................................................. 20
19
Waters v. International Precious Metals Corp.,
20
190 F.3d 1291 (11th Cir. 1999) ................................................................................................. 12
21
Wershba v. Apple Computer, Inc.
22
(2001) 91 Cal.App.4th 224 ................................................................................................ 5, 8, 13
23
Williams v. MGM–Pathe Communications
24
(9th Cir. 1997) 129 F.3d 1026 ................................................................................................... 11
25
Winslow v. Harold G. Ferguson Corp.
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(1944) 25 Cal.2d 274 ................................................................................................................. 12
27
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PLAINTIFF’S UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1 TABLE OF AUTHORITIES
PAGE(S)
2 Cases
3
Young v. Polo Retail, LLC,
4
2007 WL 951821 (N.D. Cal. 2007) ........................................................................................... 12
5
Other Authorities
6
A. Conte, Attorney Fee Awards, 2nd Ed. 1993 ............................................................................. 10
7
Weil and Brown, California Practice Guide, Civil Procedure Before Trial,
8
Chapter 14, section 14:145 .......................................................................................................... 9
9
10
11
12
13
14
15
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19
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PLAINTIFF’S UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 1. SUMMARY OF MOTION
3 Plaintiff seeks final approval of (1) the $1,900,000.00 class action settlement, (2)
4 attorneys’ fees in the amount of $665,000, (3) costs in the amount of $22,302.54 to Class
5 Counsel, (4) the costs of claims administration in the amount of $13,295, (5) PAGA penalties to
6 the LWDA in the amount of $20,000, and (5) a Class Representative Payment to Melissa Gupton
7 and Angela Potter in the amount of $10,000 each. This hotly-contested wage-and-hour class
8 action involved over 1,500 hours consisting of three years of ongoing investigations, the
9 exchange of written discovery, the analysis of documents, and attending an arms-length
10 mediation to arrive at this Settlement. The requested amounts of attorneys’ fees, costs, and Class
11 Representative Payments were fully disclosed to the class members when notice of the
12 Settlement was mailed. Importantly, not a single class member objected to the request for
13 attorneys’ fees, costs, and Class Representative Payments. As such, the Settlement is fair and
14 reasonable and the product of arms-length, good-faith negotiations by experienced counsel
15 presided over by a highly-qualified mediator specializing in wage-and-hour class actions.
16 Accordingly, the Court should grant final approval.
17
18 2. PROCEDURAL HISTORY AND FACTUAL BACKGROUND
19 This is a class action settlement on behalf of all current and former hourly-paid or non-
20 exempt branch employees employed by Tri Counties within the State of California at any time
21 between September 15, 2010 and October 21, 2016 (the “Gupton Settlement Class”) for alleged
22 meal/rest and overtime claims and all current and former exempt and non-exempt employees
23 employed by Tri Counties within the State of California at any time between December 12, 2013 and
24 October 21, 2016, excluding company officers, who were issued a wage statement that did not
25 include the name “Trico Bancshares” and/or, as to non-exempt employees only, all applicable rates
26 of pay in effect during the pay period (the “Potter Settlement Class”) for alleged wage statement
27 violations.
28 ////
1
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PLAINTIFF’S UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1 Plaintiff Melissa Gupton commenced this class action against Tri Counties on September 15,
2 2014 alleging claims for (1) Violation of California Labor Code § 226.7 (Unpaid Meal Period
3 Premiums); (2) Violation of California Labor Code § 226.7 (Unpaid Rest Period Premiums); (3)
4 Violation of California Labor Code §§ 1194, 1197 and 1197.1 (Unpaid Minimum Wages); (4)
5 Violation of California Labor Code §§ 201 and 202 (Final Wages Not Timely Paid); (5) Violation of
6 California Labor Code § 204 (Wages Not Timely Paid During Employment; (6) Violation of
7 California Labor Code § 226(a) (Non-Compliant Wage Statements); (7) Violation of California
8 Labor Code § 1174(d) (Failure to Keep Requisite Payroll Records); and (8) Violation of California
9 Business & Professions Code §§ 17200, et seq. (the “Gupton Action”).
10 Plaintiff Angela Potter commenced a separate class action against Tri Counties and Trico
11 Bancshares (collectively “Defendants”) on or about December 12, 2014 in the Superior Court of the
12 State of California for the County of Sacramento alleging claims for (1) Violation of the Private
13 Attorney General Act (Lab. Code § 2698, et seq.); (2) Failure to Adhere to California Recordkeeping
14 Requirements (Lab. Code § 226(a)); (3) Knowing and Intentional Failure to Comply with Itemized
15 Wage Statement Provisions (Lab. Code § 226(e)); (4) Violations of the Unfair Competition Law
16 (Bus. & Prof. Code §§ 17200 et seq.); (5) Declaratory Relief; and (6) Injunctive and Monetary Relief
17 (the “Potter Action”).
18 Tri Counties and/or Trico Bancshares filed Answers to both Actions generally denying
19 Plaintiffs’ respective claims and stating several affirmative defenses, including a dispute as to
20 whether each Action is appropriate for class action certification. The parties engaged in formal and
21 informal discovery to assess the validity of Plaintiffs’ claims, the scope of the respective classes, and
22 other issues pertinent to the Actions. On July 19, 2016, the parties participated in mediation with
23 mediator Mark Rudy. In order to avoid the costs and inconvenience of litigation, the parties have
24 agreed to settle the claims alleged in the Potter Action and the Gupton Action. Based on their
25 investigation and evaluation of this case, Plaintiff’s counsel has concluded that the Settlement
26 described in the Settlement Agreement is fair, reasonable, and adequate and is in the best interest
27 of the Settlement Classes in light of all known facts and circumstances, defenses asserted by
28 Defendants, adverse findings regarding liability, and numerous potential appellate issues.
2
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PLAINTIFF’S UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1 3. SUMMARY OF THE SETTLEMENT TERMS
2 Under the terms of the Settlement Agreement, Defendant agreed to pay a total maximum
3 settlement amount of up to $1,900,000.00. The Net Settlement Amount of $1,159,402.46 was
4 calculated by deducting (1) $665,000 to Class Counsel for attorneys’ fees, (2) $22,302.54 to
5 Class Counsel for litigation costs and expenses, (3) $13,295 to Dahl Administration, LLC for
6 settlement administration costs, (4) $20,000.00 to the Class Representatives, and (5) $20,000 in
7 PAGA Penalties to the Labor & Workforce Development Agency. Each of the 789 Class
8 Member who timely submitted a valid Claim Form will receive payment out of the $695,641.48
9 Guaranteed Floor Amount (60% of the Net Settlement Amount) based on the pay periods they
10 worked for the Potter Settlement Class and workweeks for the Gupton Settlement Class.
11 4. NOTICE OF THE SETTLEMENT TO THE CLASS
12 On October 31, 2017, the Settlement Administrator, Dahl Administration, LLC (“Dahl”),
13 mailed the court-approved Notice of Proposed Class Action Settlement and Claim Form via First
14 Class mail to the Class Members.1 Class Members had until November 30, 2017 to respond to
15 the Settlement.2 As of December 14, 2017, a total of 789 Class Members submitted timely and
16 valid Claim Forms.3 The estimated average payment per Class Member is $790.03, with
17 $2,917.30 as the highest payment.4 As of December 14, 2017, Dahl did not receive any
18 objections to the Settlement.5 Only 44 Class Members opted out of this Settlement which
19 represents less than 1% of the entire class.6
20 5. THE COURT SHOULD GRANT FINAL APPROVAL OF THE CLASS ACTION SETTLEMENT.
21 The trial court has broad discretion to determine whether a class action settlement is fair
22 and reasonable. Chavez v. Netflix, Inc. (2008) 162 Cal.App.4th 43, 52. To determine whether
23 the settlement is fair, courts consider relevant factors such as “the strength of plaintiffs’ case, the
24 risk, expense, complexity and likely duration of further litigation, the risk of maintaining class
25
26 1
Declaration of Kelly Kratz (“Kratz Decl.”) at ¶ 6.
2
Id.
27 3
Id. at ¶ 11.
4
Id.
28 5
Id. at ¶ 10.
6
Id. at ¶ 9.
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PLAINTIFF’S UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1 action status through trial, the amount offered in settlement, the extent of discovery completed
2 and the stage of the proceedings, the experience and views of counsel, the presence of a
3 governmental participant, and the reaction of the class members to the proposed settlement.”
4 Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1801. “The list of factors is not exclusive
5 and the court is free to engage in a balancing and weighing of the factors depending on the
6 circumstances of each case.” Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 245.
7 “Due regard should be given to what is otherwise a private consensual agreement between the
8 parties.” Dunk, supra, 48 Cal.App.4th at p. 1801.
9 The burden is on the proponent of the settlement to show that it is fair and reasonable.
10 Wershba, supra, 91 Cal.App.4th at p. 245. However, a presumption of fairness exists where:
11 “(1) the settlement is reached through arm’s-length bargaining; (2) investigation and discovery
12 are sufficient to allow counsel and the court to act intelligently; (3) counsel is experienced in
13 similar litigation; and (4) the percentage of objectors is small.” Dunk, supra, 48 Cal.App.4th at
14 p. 1802. In considering the class settlement, the court need not reach any ultimate conclusions
15 on the issues of fact and law which underlie the merits of the dispute. 7-Eleven Owners for Fair
16 Franchising v. Southland Corp. (2000) 85 Cal.App.4th 1135, 1146. The inquiry is not whether
17 the settlement agreement is the best one that class members could have possibly obtained, but
18 whether the settlement taken as a whole is “fair, adequate, and reasonable.” Chavez, supra, 162
19 Cal.App.4th at p. 55. A settlement need not obtain 100 percent of the damages sought in order to
20 be fair and reasonable. Wershba, supra, 91 Cal.App.4th at p. 251. Even if the relief afforded by
21 the proposed settlement is substantially narrower than it would be if the lawsuit was to be
22 successfully litigated, that is no bar to a class settlement because the public interest may indeed
23 be served by a voluntary settlement in which each side gives ground in the interest of avoiding
24 litigation. Id. Although the court is a “guardian for the absent class members,” its “role in
25 intruding upon what is otherwise a private consensual agreement is limited to the extent
26 necessary to reach a reasoned judgment that the agreement is not the product of fraud or
27 collusion between the negotiating parties, and that the settlement, taken as a whole, is fair,
28 reasonable and adequate to all concerned.” Schiller v. David’s Bridal, Inc. (E.D.Cal. June 11,
4
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PLAINTIFF’S UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1 2012) No. 1:10-cv-00616-AWI-SKO, 2012 WL 2117001, at *10 (citing In re Imperial Corp. of
2 Am. (9th Cir. 1996) 92 F.3d 1502, 1506 n.5).
3 A. The Settlement Was Reached Through Arms’ Length Bargaining After
4 Sufficient Investigation and Discovery by Experienced Class Counsel.
5 The parties have actively litigated this case since it was initially filed on September 15,
6 2014. There have been ongoing investigations, pleading challenges, and the exchange of written
7 discovery and documents and the informal exchange of information prior to and during
8 mediation.7 During the course of this litigation, the parties engaged in extensive discovery and
9 investigation. Furthermore, the parties engaged in an arms’ length mediation session before
10 Mark S. Rudy, Esq., who is a very well respected, experienced mediator who specializes in
11 resolving California class action litigation.8
12 During the mediation, the parties exchanged information and discussed all aspects of the
13 case including the risks and delays of further litigation, the evidence produced and analyzed, and
14 the possibility of a trial and resulting appeals, among other things.9 During all settlement
15 discussions, the parties conducted their negotiations at arms’ length in an adversarial posture.10
16 Arriving at a settlement that was acceptable to both parties was not easy. Defendant and its
17 counsel felt very strongly about Defendant’s ability to prevail on the merits at trial. And,
18 Plaintiffs and Class Counsel believed that they would prevail at trial. After an arms’-length
19 mediation, and after much consideration by the parties as to their respective positions and risks in
20 continued litigation, the parties agreed that this case was well suited for settlement given the
21 costs and risks both sides faced in further, very protracted litigation.11
22 The proposed Settlement takes into account the strengths and weaknesses of each side’s
23 position and the uncertainty of how the case might have concluded at trial.12 At least nine sets of
24
25
26 7
Szeto Decl. at ¶¶ 8-14, 35-41.
8
Id. at ¶ 14.
27 9
Id.
10
Id.
28 11
Id.
12
Id.
5
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PLAINTIFF’S UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1 written discovery have been exchanged.13 Class Counsel also reviewed over 1,600 pages of
2 documents produced in this case and performed significant research into the law concerning
3 Defendants’ defenses.14 The proposed Settlement was based on this incredibly large volume of
4 facts, evidence, and investigation.15 And, Class Counsel has extensive experience in
5 employment class actions, including extensive experience in California wage-and-hour
6 litigation.16
7 B. The Settlement is Fair, Adequate, and Reasonable.
8 The Settlement provides for a $1,900,000.00 gross settlement amount and a
9 $1,150,402.46 net settlement amount to be claimed. For the 789 Class Members who submitted
10 a timely and valid Claim Form, this averages out to approximately $790.03 per Class Member
11 and a maximum payment of approximately $2,917.30.17 This recovery exceeds Plaintiffs’
12 estimated potential classwide damage calculations.18 This Settlement undoubtedly represents an
13 astounding recovery for the Class Members compared to the estimated potential classwide
14 damages as the Settlement takes into account the inherent risk, expense, and uncertainty
15 associated with class certification, the merits of the case, trial, and inevitable appeals. Further
16 litigation carries the possibility of decertification and unfavorable rulings on the merits before,
17 during, and after trial. There would be voluminous expert discovery and the parties would
18 present competing trial plans to the Court for consideration in managing a class-wide trial, with
19 Defendant likely arguing throughout the process that any class-action trial is inappropriate,
20 which Plaintiffs would vigorously contest throughout. A class-wide jury trial would likely last
21 several weeks at minimum, and involve party, class-member, expert and percipient witness
22 testimony. As with all jury trials, there is considerable risk for either party.
23 Were Plaintiffs to succeed in certifying the class, keeping the case certified and
24 prevailing at a class-action jury trial, in a case of this magnitude, the resulting money judgment
25
26 13
Szeto Decl. at ¶ 13.
14
Id. at ¶¶ 13, 38.
27 15
Id. at ¶ 8-14, 35-41.
16
Id. at ¶¶ 28-31.
28 17
Kratz Decl. at ¶ 11.
18
Szeto at ¶ 17.
6
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PLAINTIFF’S UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1 would likely be subject to many rounds of appeals, where, again, both sides would face
2 considerable risk – for Plaintiffs their hard-fought jury verdict could be overturned, as could a
3 favorable ruling for the defense. In addition, money judgments must be bonded, and interest
4 accrues during the pendency of appeal. The Class Members still would not have yet received
5 any money during the appeal process, and Class Counsel could have to spend years defending its
6 trial court judgment in possibly several rounds of appeal.
7 While there are considerable risks associated with class certification, a class action trial,
8 and resulting appeals, Class Counsel has taken these types of large class action cases all the way
9 to the jury trial phase, and stood (and stand) ready and willing to do so again in this case. That
10 said, when presented with a seven-figure settlement that will benefit a large group of employees
11 in the very near future, the risk of later potentially recovering nothing, many years later, must be
12 candidly recognized and evaluated. Accordingly, the Settlement as a whole is fair, adequate, and
13 in the best interest of the Class Members, discounted in light of all of these risks and many more
14 years of delay in the Class Members seeing any real monetary relief.
15 C. There Are No Objectors to the Settlement.
16 The Settlement was well received by the Class – not a single class member objected to
17 the Settlement.19 Specifically, no objections were made as to the gross amount of the
18 Settlement, the request for a Class Representative Payment to Plaintiffs, or the request for
19 attorneys’ fees and costs. California courts have consistently found that a small number of
20 objectors indicates the class’ support for a settlement and strongly favors final approval.
21 Stoetzner v. U.S. Steel Corp. (3d Cir. 1990) 897 F.2d 115, 118-119 (finding 29 objections out of
22 a 281 member class (roughly 10.3%) “strongly favors settlement”); Wershba, supra, 91
23 Cal.App.4th at p. 250-251 (final approval granted despite 20 objectors); 7-Eleven Owners, supra,
24 85 Cal.App.4th at p. 1152-1153 (final approval granted despite 9 objectors).
25 The lack of any objections speaks volumes about the fairness, reasonableness, and
26 adequacy of this Settlement. Accordingly, the Settlement is presumed as a whole to be fair,
27
28
19
Kratz Decl. at ¶ 10.
7
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PLAINTIFF’S UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1 reasonable, and adequate and the Court should grant final approval of the entire Settlement.
2 Dunk, supra, 48 Cal.App.4th at p. 1802.
3 6. LEGAL STANDARD ON ATTORNEYS’ FEES IN CLASS ACTION SETTLEMENTS.
4 The governing principles, as well as a survey of attorney fee jurisprudence (both in
5 California and throughout the country), are set out in Lealao v. Beneficial Cal., Inc. (2000) 82
6 Cal.App.4th 19, 41, which supports the use of a percentage of the common fund method. The
7 California Court of Appeal has affirmed attorneys’ fees of 37.5% of the common fund. Roos v.
8 Honeywell International, Inc. (2015) 241 Cal.App.4th 1472. That’s because when litigation
9 results in a monetary fund for the benefit of a class, such as in this case, use of that percentage
10 method is appropriate. Lealao, supra, 82 Cal.App.4th at p. 32. “Allowing fees to be paid from
11 the fund is justified by the notion that the class would be unjustly enriched if it were allowed to
12 benefit from the litigation without sharing in its costs.” Roos, supra, 241 Cal.App.4th at p. 1490
13 (citing Boeing Co. v. Van Gemert (1980) 444 U.S. 472, 478). Fee awards that are too small will
14 “chill the private enforcement essential to the vindication of many legal rights and obstruct the
15 representative actions that often relieve the courts of the need to separately adjudicate numerous
16 claims.” Lealao, supra, 82 Cal.App.4th at p. 53.
17 Class Counsel seeks a fee award in the amount of $665,000 for their successful
18
Preview
1 R. Rex Parris (SBN 96567) Kitty K. Szeto (SBN 258136) 12/20/2017 2 John M. Bickford (SBN 280929) PARRIS LAW FIRM 3 43364 10th Street West Lancaster, California 93534 4 Telephone (661) 949-2595 Facsimile (661) 949-7524 5 Attorneys for Plaintiff and the Settlement Class 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF BUTTE 10 11 MELISSA GUPTON; an individual, for ) Case No. 162972 herself and all members of the putative class, ) 12 ) CLASS ACTION Plaintiff, ) 13 ) PLAINTIFF’S NOTICE OF UNOPPOSED v. ) MOTION AND UNOPPOSED MOTION FOR 14 ) FINAL APPROVAL OF CLASS ACTION TRI COUNTIES BANK, a California ) SETTLEMENT; MEMORANDUM OF POINTS 15 Corporation, and DOES 1 through 100, ) AND AUTHORITIES inclusive, ) 16 ) [Filed Together with Declarations of Kitty K. Defendants. ) Szeto, Isaac S. Stevens, Ace T. Tate, Kelly 17 ) Kratz, Melissa Gupton, and Angela Potter; ) [Proposed] Order] 18 ) ) Date: January 12, 2018 19 ) Time: 9:00 a.m. ) Dept.: NC-3 20 ) ) 21 ) ) 22 23 24 25 26 27 28 _____________________________________________________________________________ PLAINTIFF’S UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1 PLEASE TAKE NOTICE that on January 12, 2018 at 9:00 a.m., or as soon as this 2 matter may be heard before the Honorable Stephen E. Benson in Department NC-3 of the 3 above-entitled court located at 1775 Concord Avenue, Chico, California 95928, Plaintiff 4 Melissa Gupton (“Plaintiff”) will and hereby move the Court for an order granting final approval 5 of: 6 1. The $1,900,000.00 class action settlement as described herein and as set forth in 7 the parties’ fully executed Class Action Settlement and Release (“Settlement”) attached as 8 Exhibit “A” to the Declaration of Kitty K. Szeto filed concurrently herewith on the grounds that 9 the Settlement is fair, reasonable, and adequate because: 10 789 Class Members who submitted a timely, complete, and valid Claim Form will 11 be receiving money from the Settlement; 12 The average pre-tax settlement award per Class Member is approximately 13 $790.03, with the highest award estimated at approximately $2,917.30; and 14 No objections were submitted to the Settlement. 15 2. Class Counsel’s request for attorneys’ fees in the amount of $665,000 for 16 1,533.62 hours of work on the case; 17 3. Class Counsel’s request for reimbursement of out-of-pocket litigation costs in the 18 amount of $22,302.54, which is just slightly above the initial estimate of $20,000; 19 4. $10,000 as a Class Representative Payment to Melissa Gupton; 20 5. $10,000 as a Class Representative Payment Angela Potter; 21 6. $13,295 to Dahl Administration, LLC, Inc. for settlement administration costs, 22 which is just slightly above the initial estimate of $12,544; and 23 7. $20,000 to the California Labor and Workforce Development Agency (“LWDA”) 24 for the LWDA’s portion of PAGA penalties. 25 This motion is based on the following memorandum of points and authorities; the 26 Declarations of Kitty K. Szeto, Isaac S. Stevens, Ace T. Tate, Kelly Kratz, Melissa Gupton, and 27 Angela Potter and all exhibits attached thereto filed concurrently herewith; the [Proposed] Order 28 lodged together with this motion, as well as upon the pleadings and other records on file with the 1 _____________________________________________________________________________ PLAINTIFF’S UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1 Court in this matter, and upon such documentary evidence and oral argument as may be 2 presented at or before the hearing on this motion. 3 4 DATED: December 19, 2017 PARRIS LAW FIRM 5 By:____________________________ 6 Kitty K. Szeto 7 Attorneys for Plaintiff and the Settlement Class 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 _____________________________________________________________________________ PLAINTIFF’S UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1 TABLE OF CONTENTS PAGE 2 3 1. SUMMARY OF MOTION ......................................................................................................... 1 4 2. PROCEDURAL HISTORY AND FACTUAL BACKGROUND ......................................................... 1 5 3. SUMMARY OF THE SETTLEMENT TERMS .............................................................................. 3 6 4. NOTICE OF THE SETTLEMENT TO THE CLASS ........................................................................ 3 7 5. THE COURT SHOULD GRANT FINAL APPROVAL OF THE 8 CLASS ACTION SETTLEMENT. .............................................................................................. 3 9 A. The Settlement Was Reached Through Arms’ Length Bargaining After 10 Sufficient Investigation and Discovery by Experienced Class Counsel. ................ 5 11 B. The Settlement is Fair, Adequate, and Reasonable................................................. 6 12 C. There Are No Objectors to the Settlement. ............................................................. 7 13 6. LEGAL STANDARD ON ATTORNEYS’ FEES IN CLASS ACTION SETTLEMENTS. ...................... 8 14 7. ATTORNEYS’ FEES IS JUSTIFIED AS A PERCENTAGE OF THE ENTIRE FUND. ....................... 12 15 A. The Time and Labor Required. ............................................................................. 12 16 B. The Skill Required To Perform Legal Services Properly. .................................... 13 17 C. Whether the Fee is Fixed or Contingent. .............................................................. 13 18 D. The Time, Effort, and Expense Class Counsel Dedicated to the Case. ................ 14 19 E. The Value of the Settlement for the Class Members. ........................................... 14 20 8. THE LODESTAR METHODOLOGY ALSO MANDATES APPROVAL 21 OF THE REQUESTED FEE. .................................................................................................... 16 22 9. THE REACTION OF THE CLASS MEMBERS STRONGLY SUPPORTS 23 THE REQUESTED FEE. ......................................................................................................... 17 24 10. COSTS TO BE REIMBURSED. ............................................................................................... 18 25 11. PLAINTIFF’S CLASS REPRESENTATIVE PAYMENT IS FAIR AND REASONABLE. .................... 18 26 12. CONCLUSION...................................................................................................................... 20 27 28 i _____________________________________________________________________________ PLAINTIFF’S UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1 TABLE OF AUTHORITIES PAGE(S) 2 3 Cases 4 7-Eleven Owners for Fair Franchising v. Southland Corp. 5 (2000) 85 Cal.App.4th 1135 .................................................................................................... 5, 8 6 Allapattah Services, Inc. v. Exxon Corp., 7 454 F.Supp. 2d 1185 (S.D.Fla. 2006) ........................................................................................ 12 8 Beech Cinema, Inc. v. Twentieth-Century Fox Film Corp., 9 480 F.Supp. 1195 (S.D.N.Y. 1979), aff’d 622 F.2d 1106 (2nd Cir. 1980) ................................ 15 10 Blum v. Stenson, 11 465 U.S. 886 (1984) ................................................................................................................... 11 12 Boeing Co. v. Van Gemert 13 (1980) 444 U.S. 472 ............................................................................................................ passim 14 Boring v. Bed Bath & Beyond of California Ltd. Liab. Co., 15 No. 12-CV-05259-JST, 2014 WL 2967474 (N.D. Cal. June 30, 2014) .................................... 22 16 Chavez v. Netflix, Inc. 17 (2008) 162 Cal.App.4th 43 ...................................................................................................... 4, 5 18 Crampton v. Takegoshi 19 (1993) 17 Cal.App.4th 308 ........................................................................................................ 10 20 Dolgow v. Anderson, 21 43 F.R.D. 472 (E.D.N.Y. 1968) ................................................................................................. 11 22 Dunk v. Ford Motor Co. 23 (1996) 48 Cal.App.4th 1794 .................................................................................................... 5, 9 24 Eddings v. Health Net, Inc., 25 No. CV 10-1744-JST RZX, 2013 WL 3013867 (C.D. Cal. June 13, 2013) .............................. 22 26 Glass v. UBS Financial Services, Inc., 27 2007 WL 221862 (N.D. Cal. Jan. 26, 2007) .............................................................................. 12 28 ii _____________________________________________________________________________ PLAINTIFF’S UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1 TABLE OF AUTHORITIES PAGE(S) 2 Cases 3 Holman v. Experian Info. Solutions, Inc., 4 No. 11-CV-0180 CW (DMR), 2014 WL 7186207 (N.D. Cal. Dec. 12, 2014).......................... 22 5 In Cambden I Condominium Association, Inc., v. Dunkel 6 (11th Cir. 1991) 946 F. 2d 768 .................................................................................................. 13 7 In re Activision Securities Litigation, 8 723 F. Supp. 1373 (N.D. Cal. 1989) .......................................................................................... 15 9 In re Ampicillin Antitrust Litigation, 526 F. Supp. 494 (D.D.C. 1981) ........................................ 15 10 In re Buspirone Patent & Antitrust Litig., 11 MDL No. 1413, 2003 U.S. Dist. LEXIS 26538 (S.D.N.Y. Apr. 11, 2003) ............................... 15 12 In re Cardizem CD Antitrust Litig., 13 No. 99-73259 (E.D. Mich. Nov. 25, 2002) ................................................................................ 15 14 In re Crazy Eddie Sec. Litig, 15 824 F. Supp. 320, 327 (E.D.N.Y. 1993) .................................................................................... 19 16 In re Gen. Pub. Utils. Sec. Litig., 17 No. 79-1420, 1983 U.S. Dist. LEXIS 11641 (D.N.J. Nov. 16, 1983) ....................................... 19 18 In re Imperial Corp. of Am. 19 (9th Cir. 1996) 92 F.3d 1502 ....................................................................................................... 5 20 In re Interpublic Sec. Litig., 21 No. Civ. 6527 (DLC), 2004 U.S. Dist. LEXIS 21429 (S.D.N.Y. Oct. 27, 2004) ...................... 11 22 In re Linerboard Antitrust Litigation, 23 MDL No. 1261, 2004 U.S. Dist. LEXIS 10532 (E.D. Pa. June 2, 2004) .................................. 16 24 In re Lloyd’s Am. Trust Fund Litig., 25 No. 96 Civ. 1262, 2002 U.S. Dist. LEXIS 22663 (S.D.N.Y. Nov. 26, 2002) ........................... 20 26 In re Pacific Enterprises Securities Litigation, 27 (9th Cir. 1995) 47 F. 3d 373 ..................................................................................................... 15 28 TABLE OF AUTHORITIES iii _____________________________________________________________________________ PLAINTIFF’S UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1 PAGE(S) Cases 2 3 In re Prudential Sec. Ltd. P’ships. Litig., 4 985 F. Supp. 410, 416 (S.D.N.Y. 1997)..................................................................................... 19 5 In re Relafen Antitrust Litig., 6 1:01cv12239-WGY, (Order and Final Judgment dated Apr 9, 2004, D. Mass.) ....................... 15 7 Ketchum v. Moses 8 (2001) 24 Cal.4th 1122 .............................................................................................................. 18 9 Lealao v. Beneficial Cal., Inc. 10 (2000) 82 Cal.App.4th 19 ................................................................................................ 9, 12, 13 11 Maley v. Del Global Technologies Corp., 12 186 F. Supp. 2d 358 (S.D.N.Y. 2002)........................................................................................ 19 13 Masters v. Wilhelmina Model Agency, Inc., 14 473 F.3d 423 (2d Cir. 2006)....................................................................................................... 12 15 Mills v. Electric Auto-Lite Co., 16 396 U.S. 375 (1970) ................................................................................................................... 11 17 Nichols v. Smithkline Beecham Corp., 18 No. Civ. A. 00-6222, 2005 WL 950616 (E.D. Pa. Apr. 22, 2005) ............................................ 15 19 North Shore Hematology-Oncology Assoc., P.C. v. Bristol-Myers Squibb Co., 20 No. 04 Civ. 248 (D.D.C. Nov. 30, 2004) ................................................................................... 15 21 Paul, Johnson, Alston & Hunt v. Graulty 22 (9th Cir. 1989) 886 F.2d 268 ..................................................................................................... 11 23 Roos v. Honeywell International, Inc. 24 (2015) 241 Cal.App.4th 1472 ...................................................................................................... 9 25 Schiller v. David’s Bridal, Inc. 26 (E.D.Cal. June 11, 2012) No. 1:10-cv-00616-AWI-SKO, 2012 WL 2117001 ........................... 5 27 28 iv _____________________________________________________________________________ PLAINTIFF’S UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1 TABLE OF AUTHORITIES PAGE(S) 2 Cases 3 Serrano v. Priest 4 (1977) 20 Cal.3d 25 ............................................................................................................... 9, 10 5 Six Mexican Workers v. Arizona Citrus Growers 6 (9th Cir. 1990) 904 F.2d 1301 ............................................................................................. 11, 12 7 Staton v. Boeing Co., 8 327 F.3d 938, 972 (9th Cir.2003) .............................................................................................. 10 9 Stoetzner v. U.S. Steel Corp. 10 (3d Cir. 1990) 897 F.2d 115................................................................................................... 8, 20 11 Van Gemert v. Boeing Co., 12 516 F. Supp. 412, 420 (S.D.N.Y. 1981)........................................................................... 9, 10, 15 13 Vincent v. Hughes Air West, Inc. 14 (9th Cir. 1977) 557 F.2d 759 ................................................................................................. 9, 10 15 Vo v. Las Virgenes Municipal Water Dist. 16 (2000) 79 Cal.App4th 440 ......................................................................................................... 18 17 Vranken v. Atlantic Richfield Co. 18 (N.D. Cal. 1995) 901 F.Supp. 294 ............................................................................................. 20 19 Waters v. International Precious Metals Corp., 20 190 F.3d 1291 (11th Cir. 1999) ................................................................................................. 12 21 Wershba v. Apple Computer, Inc. 22 (2001) 91 Cal.App.4th 224 ................................................................................................ 5, 8, 13 23 Williams v. MGM–Pathe Communications 24 (9th Cir. 1997) 129 F.3d 1026 ................................................................................................... 11 25 Winslow v. Harold G. Ferguson Corp. 26 (1944) 25 Cal.2d 274 ................................................................................................................. 12 27 28 v _____________________________________________________________________________ PLAINTIFF’S UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1 TABLE OF AUTHORITIES PAGE(S) 2 Cases 3 Young v. Polo Retail, LLC, 4 2007 WL 951821 (N.D. Cal. 2007) ........................................................................................... 12 5 Other Authorities 6 A. Conte, Attorney Fee Awards, 2nd Ed. 1993 ............................................................................. 10 7 Weil and Brown, California Practice Guide, Civil Procedure Before Trial, 8 Chapter 14, section 14:145 .......................................................................................................... 9 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vi _____________________________________________________________________________ PLAINTIFF’S UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 1. SUMMARY OF MOTION 3 Plaintiff seeks final approval of (1) the $1,900,000.00 class action settlement, (2) 4 attorneys’ fees in the amount of $665,000, (3) costs in the amount of $22,302.54 to Class 5 Counsel, (4) the costs of claims administration in the amount of $13,295, (5) PAGA penalties to 6 the LWDA in the amount of $20,000, and (5) a Class Representative Payment to Melissa Gupton 7 and Angela Potter in the amount of $10,000 each. This hotly-contested wage-and-hour class 8 action involved over 1,500 hours consisting of three years of ongoing investigations, the 9 exchange of written discovery, the analysis of documents, and attending an arms-length 10 mediation to arrive at this Settlement. The requested amounts of attorneys’ fees, costs, and Class 11 Representative Payments were fully disclosed to the class members when notice of the 12 Settlement was mailed. Importantly, not a single class member objected to the request for 13 attorneys’ fees, costs, and Class Representative Payments. As such, the Settlement is fair and 14 reasonable and the product of arms-length, good-faith negotiations by experienced counsel 15 presided over by a highly-qualified mediator specializing in wage-and-hour class actions. 16 Accordingly, the Court should grant final approval. 17 18 2. PROCEDURAL HISTORY AND FACTUAL BACKGROUND 19 This is a class action settlement on behalf of all current and former hourly-paid or non- 20 exempt branch employees employed by Tri Counties within the State of California at any time 21 between September 15, 2010 and October 21, 2016 (the “Gupton Settlement Class”) for alleged 22 meal/rest and overtime claims and all current and former exempt and non-exempt employees 23 employed by Tri Counties within the State of California at any time between December 12, 2013 and 24 October 21, 2016, excluding company officers, who were issued a wage statement that did not 25 include the name “Trico Bancshares” and/or, as to non-exempt employees only, all applicable rates 26 of pay in effect during the pay period (the “Potter Settlement Class”) for alleged wage statement 27 violations. 28 //// 1 _____________________________________________________________________________ PLAINTIFF’S UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1 Plaintiff Melissa Gupton commenced this class action against Tri Counties on September 15, 2 2014 alleging claims for (1) Violation of California Labor Code § 226.7 (Unpaid Meal Period 3 Premiums); (2) Violation of California Labor Code § 226.7 (Unpaid Rest Period Premiums); (3) 4 Violation of California Labor Code §§ 1194, 1197 and 1197.1 (Unpaid Minimum Wages); (4) 5 Violation of California Labor Code §§ 201 and 202 (Final Wages Not Timely Paid); (5) Violation of 6 California Labor Code § 204 (Wages Not Timely Paid During Employment; (6) Violation of 7 California Labor Code § 226(a) (Non-Compliant Wage Statements); (7) Violation of California 8 Labor Code § 1174(d) (Failure to Keep Requisite Payroll Records); and (8) Violation of California 9 Business & Professions Code §§ 17200, et seq. (the “Gupton Action”). 10 Plaintiff Angela Potter commenced a separate class action against Tri Counties and Trico 11 Bancshares (collectively “Defendants”) on or about December 12, 2014 in the Superior Court of the 12 State of California for the County of Sacramento alleging claims for (1) Violation of the Private 13 Attorney General Act (Lab. Code § 2698, et seq.); (2) Failure to Adhere to California Recordkeeping 14 Requirements (Lab. Code § 226(a)); (3) Knowing and Intentional Failure to Comply with Itemized 15 Wage Statement Provisions (Lab. Code § 226(e)); (4) Violations of the Unfair Competition Law 16 (Bus. & Prof. Code §§ 17200 et seq.); (5) Declaratory Relief; and (6) Injunctive and Monetary Relief 17 (the “Potter Action”). 18 Tri Counties and/or Trico Bancshares filed Answers to both Actions generally denying 19 Plaintiffs’ respective claims and stating several affirmative defenses, including a dispute as to 20 whether each Action is appropriate for class action certification. The parties engaged in formal and 21 informal discovery to assess the validity of Plaintiffs’ claims, the scope of the respective classes, and 22 other issues pertinent to the Actions. On July 19, 2016, the parties participated in mediation with 23 mediator Mark Rudy. In order to avoid the costs and inconvenience of litigation, the parties have 24 agreed to settle the claims alleged in the Potter Action and the Gupton Action. Based on their 25 investigation and evaluation of this case, Plaintiff’s counsel has concluded that the Settlement 26 described in the Settlement Agreement is fair, reasonable, and adequate and is in the best interest 27 of the Settlement Classes in light of all known facts and circumstances, defenses asserted by 28 Defendants, adverse findings regarding liability, and numerous potential appellate issues. 2 _____________________________________________________________________________ PLAINTIFF’S UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1 3. SUMMARY OF THE SETTLEMENT TERMS 2 Under the terms of the Settlement Agreement, Defendant agreed to pay a total maximum 3 settlement amount of up to $1,900,000.00. The Net Settlement Amount of $1,159,402.46 was 4 calculated by deducting (1) $665,000 to Class Counsel for attorneys’ fees, (2) $22,302.54 to 5 Class Counsel for litigation costs and expenses, (3) $13,295 to Dahl Administration, LLC for 6 settlement administration costs, (4) $20,000.00 to the Class Representatives, and (5) $20,000 in 7 PAGA Penalties to the Labor & Workforce Development Agency. Each of the 789 Class 8 Member who timely submitted a valid Claim Form will receive payment out of the $695,641.48 9 Guaranteed Floor Amount (60% of the Net Settlement Amount) based on the pay periods they 10 worked for the Potter Settlement Class and workweeks for the Gupton Settlement Class. 11 4. NOTICE OF THE SETTLEMENT TO THE CLASS 12 On October 31, 2017, the Settlement Administrator, Dahl Administration, LLC (“Dahl”), 13 mailed the court-approved Notice of Proposed Class Action Settlement and Claim Form via First 14 Class mail to the Class Members.1 Class Members had until November 30, 2017 to respond to 15 the Settlement.2 As of December 14, 2017, a total of 789 Class Members submitted timely and 16 valid Claim Forms.3 The estimated average payment per Class Member is $790.03, with 17 $2,917.30 as the highest payment.4 As of December 14, 2017, Dahl did not receive any 18 objections to the Settlement.5 Only 44 Class Members opted out of this Settlement which 19 represents less than 1% of the entire class.6 20 5. THE COURT SHOULD GRANT FINAL APPROVAL OF THE CLASS ACTION SETTLEMENT. 21 The trial court has broad discretion to determine whether a class action settlement is fair 22 and reasonable. Chavez v. Netflix, Inc. (2008) 162 Cal.App.4th 43, 52. To determine whether 23 the settlement is fair, courts consider relevant factors such as “the strength of plaintiffs’ case, the 24 risk, expense, complexity and likely duration of further litigation, the risk of maintaining class 25 26 1 Declaration of Kelly Kratz (“Kratz Decl.”) at ¶ 6. 2 Id. 27 3 Id. at ¶ 11. 4 Id. 28 5 Id. at ¶ 10. 6 Id. at ¶ 9. 3 _____________________________________________________________________________ PLAINTIFF’S UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1 action status through trial, the amount offered in settlement, the extent of discovery completed 2 and the stage of the proceedings, the experience and views of counsel, the presence of a 3 governmental participant, and the reaction of the class members to the proposed settlement.” 4 Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1801. “The list of factors is not exclusive 5 and the court is free to engage in a balancing and weighing of the factors depending on the 6 circumstances of each case.” Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 245. 7 “Due regard should be given to what is otherwise a private consensual agreement between the 8 parties.” Dunk, supra, 48 Cal.App.4th at p. 1801. 9 The burden is on the proponent of the settlement to show that it is fair and reasonable. 10 Wershba, supra, 91 Cal.App.4th at p. 245. However, a presumption of fairness exists where: 11 “(1) the settlement is reached through arm’s-length bargaining; (2) investigation and discovery 12 are sufficient to allow counsel and the court to act intelligently; (3) counsel is experienced in 13 similar litigation; and (4) the percentage of objectors is small.” Dunk, supra, 48 Cal.App.4th at 14 p. 1802. In considering the class settlement, the court need not reach any ultimate conclusions 15 on the issues of fact and law which underlie the merits of the dispute. 7-Eleven Owners for Fair 16 Franchising v. Southland Corp. (2000) 85 Cal.App.4th 1135, 1146. The inquiry is not whether 17 the settlement agreement is the best one that class members could have possibly obtained, but 18 whether the settlement taken as a whole is “fair, adequate, and reasonable.” Chavez, supra, 162 19 Cal.App.4th at p. 55. A settlement need not obtain 100 percent of the damages sought in order to 20 be fair and reasonable. Wershba, supra, 91 Cal.App.4th at p. 251. Even if the relief afforded by 21 the proposed settlement is substantially narrower than it would be if the lawsuit was to be 22 successfully litigated, that is no bar to a class settlement because the public interest may indeed 23 be served by a voluntary settlement in which each side gives ground in the interest of avoiding 24 litigation. Id. Although the court is a “guardian for the absent class members,” its “role in 25 intruding upon what is otherwise a private consensual agreement is limited to the extent 26 necessary to reach a reasoned judgment that the agreement is not the product of fraud or 27 collusion between the negotiating parties, and that the settlement, taken as a whole, is fair, 28 reasonable and adequate to all concerned.” Schiller v. David’s Bridal, Inc. (E.D.Cal. June 11, 4 _____________________________________________________________________________ PLAINTIFF’S UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1 2012) No. 1:10-cv-00616-AWI-SKO, 2012 WL 2117001, at *10 (citing In re Imperial Corp. of 2 Am. (9th Cir. 1996) 92 F.3d 1502, 1506 n.5). 3 A. The Settlement Was Reached Through Arms’ Length Bargaining After 4 Sufficient Investigation and Discovery by Experienced Class Counsel. 5 The parties have actively litigated this case since it was initially filed on September 15, 6 2014. There have been ongoing investigations, pleading challenges, and the exchange of written 7 discovery and documents and the informal exchange of information prior to and during 8 mediation.7 During the course of this litigation, the parties engaged in extensive discovery and 9 investigation. Furthermore, the parties engaged in an arms’ length mediation session before 10 Mark S. Rudy, Esq., who is a very well respected, experienced mediator who specializes in 11 resolving California class action litigation.8 12 During the mediation, the parties exchanged information and discussed all aspects of the 13 case including the risks and delays of further litigation, the evidence produced and analyzed, and 14 the possibility of a trial and resulting appeals, among other things.9 During all settlement 15 discussions, the parties conducted their negotiations at arms’ length in an adversarial posture.10 16 Arriving at a settlement that was acceptable to both parties was not easy. Defendant and its 17 counsel felt very strongly about Defendant’s ability to prevail on the merits at trial. And, 18 Plaintiffs and Class Counsel believed that they would prevail at trial. After an arms’-length 19 mediation, and after much consideration by the parties as to their respective positions and risks in 20 continued litigation, the parties agreed that this case was well suited for settlement given the 21 costs and risks both sides faced in further, very protracted litigation.11 22 The proposed Settlement takes into account the strengths and weaknesses of each side’s 23 position and the uncertainty of how the case might have concluded at trial.12 At least nine sets of 24 25 26 7 Szeto Decl. at ¶¶ 8-14, 35-41. 8 Id. at ¶ 14. 27 9 Id. 10 Id. 28 11 Id. 12 Id. 5 _____________________________________________________________________________ PLAINTIFF’S UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1 written discovery have been exchanged.13 Class Counsel also reviewed over 1,600 pages of 2 documents produced in this case and performed significant research into the law concerning 3 Defendants’ defenses.14 The proposed Settlement was based on this incredibly large volume of 4 facts, evidence, and investigation.15 And, Class Counsel has extensive experience in 5 employment class actions, including extensive experience in California wage-and-hour 6 litigation.16 7 B. The Settlement is Fair, Adequate, and Reasonable. 8 The Settlement provides for a $1,900,000.00 gross settlement amount and a 9 $1,150,402.46 net settlement amount to be claimed. For the 789 Class Members who submitted 10 a timely and valid Claim Form, this averages out to approximately $790.03 per Class Member 11 and a maximum payment of approximately $2,917.30.17 This recovery exceeds Plaintiffs’ 12 estimated potential classwide damage calculations.18 This Settlement undoubtedly represents an 13 astounding recovery for the Class Members compared to the estimated potential classwide 14 damages as the Settlement takes into account the inherent risk, expense, and uncertainty 15 associated with class certification, the merits of the case, trial, and inevitable appeals. Further 16 litigation carries the possibility of decertification and unfavorable rulings on the merits before, 17 during, and after trial. There would be voluminous expert discovery and the parties would 18 present competing trial plans to the Court for consideration in managing a class-wide trial, with 19 Defendant likely arguing throughout the process that any class-action trial is inappropriate, 20 which Plaintiffs would vigorously contest throughout. A class-wide jury trial would likely last 21 several weeks at minimum, and involve party, class-member, expert and percipient witness 22 testimony. As with all jury trials, there is considerable risk for either party. 23 Were Plaintiffs to succeed in certifying the class, keeping the case certified and 24 prevailing at a class-action jury trial, in a case of this magnitude, the resulting money judgment 25 26 13 Szeto Decl. at ¶ 13. 14 Id. at ¶¶ 13, 38. 27 15 Id. at ¶ 8-14, 35-41. 16 Id. at ¶¶ 28-31. 28 17 Kratz Decl. at ¶ 11. 18 Szeto at ¶ 17. 6 _____________________________________________________________________________ PLAINTIFF’S UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1 would likely be subject to many rounds of appeals, where, again, both sides would face 2 considerable risk – for Plaintiffs their hard-fought jury verdict could be overturned, as could a 3 favorable ruling for the defense. In addition, money judgments must be bonded, and interest 4 accrues during the pendency of appeal. The Class Members still would not have yet received 5 any money during the appeal process, and Class Counsel could have to spend years defending its 6 trial court judgment in possibly several rounds of appeal. 7 While there are considerable risks associated with class certification, a class action trial, 8 and resulting appeals, Class Counsel has taken these types of large class action cases all the way 9 to the jury trial phase, and stood (and stand) ready and willing to do so again in this case. That 10 said, when presented with a seven-figure settlement that will benefit a large group of employees 11 in the very near future, the risk of later potentially recovering nothing, many years later, must be 12 candidly recognized and evaluated. Accordingly, the Settlement as a whole is fair, adequate, and 13 in the best interest of the Class Members, discounted in light of all of these risks and many more 14 years of delay in the Class Members seeing any real monetary relief. 15 C. There Are No Objectors to the Settlement. 16 The Settlement was well received by the Class – not a single class member objected to 17 the Settlement.19 Specifically, no objections were made as to the gross amount of the 18 Settlement, the request for a Class Representative Payment to Plaintiffs, or the request for 19 attorneys’ fees and costs. California courts have consistently found that a small number of 20 objectors indicates the class’ support for a settlement and strongly favors final approval. 21 Stoetzner v. U.S. Steel Corp. (3d Cir. 1990) 897 F.2d 115, 118-119 (finding 29 objections out of 22 a 281 member class (roughly 10.3%) “strongly favors settlement”); Wershba, supra, 91 23 Cal.App.4th at p. 250-251 (final approval granted despite 20 objectors); 7-Eleven Owners, supra, 24 85 Cal.App.4th at p. 1152-1153 (final approval granted despite 9 objectors). 25 The lack of any objections speaks volumes about the fairness, reasonableness, and 26 adequacy of this Settlement. Accordingly, the Settlement is presumed as a whole to be fair, 27 28 19 Kratz Decl. at ¶ 10. 7 _____________________________________________________________________________ PLAINTIFF’S UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1 reasonable, and adequate and the Court should grant final approval of the entire Settlement. 2 Dunk, supra, 48 Cal.App.4th at p. 1802. 3 6. LEGAL STANDARD ON ATTORNEYS’ FEES IN CLASS ACTION SETTLEMENTS. 4 The governing principles, as well as a survey of attorney fee jurisprudence (both in 5 California and throughout the country), are set out in Lealao v. Beneficial Cal., Inc. (2000) 82 6 Cal.App.4th 19, 41, which supports the use of a percentage of the common fund method. The 7 California Court of Appeal has affirmed attorneys’ fees of 37.5% of the common fund. Roos v. 8 Honeywell International, Inc. (2015) 241 Cal.App.4th 1472. That’s because when litigation 9 results in a monetary fund for the benefit of a class, such as in this case, use of that percentage 10 method is appropriate. Lealao, supra, 82 Cal.App.4th at p. 32. “Allowing fees to be paid from 11 the fund is justified by the notion that the class would be unjustly enriched if it were allowed to 12 benefit from the litigation without sharing in its costs.” Roos, supra, 241 Cal.App.4th at p. 1490 13 (citing Boeing Co. v. Van Gemert (1980) 444 U.S. 472, 478). Fee awards that are too small will 14 “chill the private enforcement essential to the vindication of many legal rights and obstruct the 15 representative actions that often relieve the courts of the need to separately adjudicate numerous 16 claims.” Lealao, supra, 82 Cal.App.4th at p. 53. 17 Class Counsel seeks a fee award in the amount of $665,000 for their successful 18